SCA/8435/2008 6/ 6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8435 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THAKORBHAI MAKANBHAI PATEL & 5 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR KK TRIVEDI for Petitioner(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.6,2.2.7 - 6. MR JK SHAH ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 5. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 24/06/2008 ORAL JUDGMENT
1. RULE.
Mr. J.K. Shah, learned Assistant Government Pleader waives service of
Rule on behalf of the respondents. In the facts and circumstances of
the case, and with the consent of the learned counsel for the
parties, the matter is taken up for final hearing today.
2. This
petition has been filed by the petitioners with the following
prayers:-
[A]
Your Lordship may be pleased to admit the present petition.
[B]
Your Lordship may be pleased to issue a writ of Certiorari or a writ
in nature of Certiorari or any other appropriate, writ/s, order/s
and/or direction/s quashing and setting aside the notice issued by
the respondent no. 2 dated 13.09.2006 (Annexure-A) as well as order
passed by the respondent no. 2 dated 24.03.2003 (Annexure-B).
[C]
Your Lordship may be pleased to issue a writ of mandamus or a writ in
nature of mandamus or any other appropriate writ/s, order/s, and/or
direction/s directing the respondent no. 3 to enter the necessary
mutation entry giving effect to the order dated 09.10.2002 passed by
the respondent no. 5 in Tenancy Case No. 84 of 2002 (Annexure-C) in
the revenue records/Village Form Nos. 6 and 7/12 of Village Adajan,
Taluka City Surat, District Surat within a reasonable time which may
be stipulated by this Hon’ble Court.
[D]
Pending, admission, hearing and final disposal of this petition,
Your Lordship may be pleased to grant and ad-interim/ interim relief
staying the execution, operation and implementation of the notice
issued by the respondent no. 2 dated 13.09.2006 (Annexure-A) as well
as order passed by the respondent no. 2 dated 24.03.2003
(Annexure-B).
[E]
Such other and further relief/s as may be deem just and proper in the
facts and circumstances of the case may pleased be granted in favour
of the petitioners in the interest of justice.ýý
3. Briefly
stated, the facts of the case are that the petitioners are the owners
and possessors of land bearing Revenue Survey No.11/1, 17 and 698/2
of Village Adajan, Taluka City Surat, District Surat, admeasuring
about 2529 sq.mtrs., 2630 sq.mtrs. and 2125 sq.mtrs. respectively
[hereinafter referred to as ýSthe land in questionýý]. It is the
case of the petitioners that the respondent no. 5 i.e. the Additional
Mamlatdar and ALT (Tenancy) Choryasi, vide order dated 9th
October, 2002 rendered in Tenancy case No. 84 of 2002 under the
provisions of Section 70(O) of the Bombay Tenancy and Agricultural
Lands Act, 1948 [the ýSActýý for short], declared the petitioners
as permanent tenants, thereby removing the restrictions imposed under
Section 43 of the Act. It is the case of the petitioners that the
order dated 9th October, 2002, which was passed by the
respondent no 5 was confirmed by the respondent no. 4 [Deputy
Collector], Choryasi Prant by order dated 27th February,
2003.
4. The
case of the petitioners is that the State Government has not
challenged the order dated 9th October, 2002 passed by the
respondent No.5 till date. However, a Circular dated 7th
October, 2005 came to be issued by the State Government, empowering
the District Collector to decide the cases under the provisions of
Section 43 of the Act. Pursuant thereto, the Collector issued notice
dated 13th September, 2006 to the petitioners stating that
the respondent No.5 had no authority to decide the question of
permanent tenancy and that this power had been vested with the
Collector, pursuant to issuance of Circular dated 7th
October, 2005. The Government Circular dated 7th October,
2005 was challenged by a number of persons by filing Special Civil
Application No.9609 of 2006 and other allied matters and this court,
vide judgment dated 17-18-23/01-2007, has quashed and set aside the
Circular dated 7th October, 2005 as being ultra vires
the provisions of the Act. The petitioners are, therefore, aggrieved
by the notice dated 13th September, 2006 (Annexure ýSAýý
to the petition), which has been issued by the respondent No.1
pursuant to the Circular dated 7th October, 2005 and has
therefore, approached the Court by filing this petition.
5. I
have heard Mr. K.K. Trivedi,learned counsel for the petitioners and
Mr. J. K. Shah,learned Assistant Government Pleader for the
respondents and have gone through the averments made in the petition
as well as the documents annexed thereto.
6. A
perusal of the impugned communication dated 13th
September, 2006 makes it clear that the said notice has been issued
by placing reliance upon the circular dated 7th October,
2005, which has already been set aside by this court vide judgment
dated 17-18-23/01-2007 rendered in Special Civil Application No.9609
of 2006.
7. Mr.
J.K. Shah, learned Assistant Government Pleader has submitted that
the State Government has filed a Letters Patent Appeal against this
judgment but the same is lying in the Registry of the High Court for
removal of office objections. Be that as it may, the fact remains
that the judgment of this Court dated: 17-18-23/1-2007 in Special
Civil Application No.9609 of 2006 whereby the Court has dealt with
the rights of a person claiming protection as a protected or
permanent tenant, and whereby the Circular dated 7th
October, 2005 of the State Government has been quashed and set
aside, still holds the field. Since the Circular dated 7th
October, 2005 has not yet been restored, it cannot be made applicable
to the case of the petitioners.
8. In
view of the above facts and circumstances, the notice dated 13th
September, 2006 (Annexure ýSAýý to the petition) insofar as it
relates to the Circular dated 7th October, 2005 of the
State Government is quashed and set aside, with the clarification
that the present direction shall not operate as a bar to the
Collector in exercising other statutory powers, as may be available
under the Act, and nor shall the bar operate for other remedial
measures against the order dated 9th October, 2002 passed
by the Mamlatdar and ALT, if otherwise permissible in law.
9. So
far as the directions of the Collector at Annexure ý B are
concerned, it is clarified that if the respondents do not take proper
recourse to law, within a period of three months from the date of
this order, the restriction imposed vide order dated 24th
March, 2003 (Annexure ý B) shall cease to operate after the expiry
of the above stipulated period of three months. It is open to the
petitioners to apply to respondent No.3 for the mutation of entries
in pursuance of order dated 9th October, 2002, which will
be dealt with by the respondent No.3, in accordance with law
10. This
petition is disposed of in the above terms. Rule is made absolute.
There shall be no orders as to costs.
[Smt.
Abhilasha Kumari, J.]
/phalguni/